Tenth Circuit rejects Moncrieffe-based argument, holds 21 U.S.C. § 841(a)(1) is a “drug trafficking offense”

U.S. v. Dominguez-Rodriguez, 817 F.3d 1190 (3/31/16) (N.M.) (Published) - The 10th turns down an ingenious attack on USSG § 2L1.2 enhancements. The 10th holds a violation of 21 U.S.C. § 841(a)(1) is a “drug trafficking offense” under USSG § 2L1.2(b)(1)(A). The possession with intent to distribute does not have to include an element of commercial dealing and remuneration, the 10th concludes. The 10th justifies the difference from the result in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), which did acknowledge a commercial dealing/remuneration element requirement in the immigration law context, on the grounds that § 2L1.2 had its own distinct definition of “drug trafficking offense.” That definition in application note 1 includes possession with intent to distribute a controlled substance. The 10th looks to the generic contemporary meaning of possession with intent to distribute. The 10th finds that meaning in § 841(a)(1). That provision criminalizes non-commercial, non-remunerative distribution. End of story. The 10th notes the anomaly that under its ruling a state drug offense might qualify for a 16-level enhancement, but under Moncrieffe, not for an aggravated-felony 8-level enhancement. But that anomaly was not before the 10th in this case, the 10th says, so it doesn't have to justify it now.